Sons of Cadder Rulings: Major Step in Clarifying Rights of the Accused, says Law Society

Today’s rulings by the UK Supreme Court on the ‘Sons of Cadder’ cases, are a significant step in clarifying the rights of an accused in Scotland – says the Law Society of Scotland.

Bill McVicar, Convener of the Society’s Criminal Law Committee said: “This marks a significant step in understanding the impact of the Cadder principle. Clearly there will still be questions around its effect, for example where a suspect waives the right to a solicitor. This will be heard by the UK Supreme Court next week.”

McVicar said: “The emergency legislation passed as a result of the Cadder case last year shows a clear need for a full review of the compatibility of Scots criminal law with ECHR – a proposal the Society called for in its manifesto for 2011.”

The four test cases were referred by the Crown Office to the UK Supreme Court earlier this year, following last year’s landmark judgement in the Cadder case, where it was ruled all suspects should be granted access to a solicitor before being questioned by police, when detained. It was announced today that The UK Supreme Court has allowed three of the four references.

McVicar said: “The judgement in the Cadder case last year was a landmark ruling for Scots law, affecting all aspects of the justice system. We are pleased that these test cases, the ‘Sons of Cadder’, have been reviewed at the earliest opportunity.”

“The Society also notes the important role of the Supreme Court in determining such cases. The Supreme Court considers only issues affecting an individual’s constitutional or human rights in Scotland and does not sit as a Court of Criminal appeal for Scottish cases.”

McVicar said: “Early ruling on these cases also provides certainty to the police, the crown, defence solicitors and those involved at each step in the criminal justice system.”

“We will consider these judgements in full and we also look forward to reading the final report by the Carloway Review group in due course. We welcome the opportunity to comment further in light of any proposed legislative change.”

Each of the test cases involved a situation where a suspect had given information to the police, without prior access to a solicitor.

The Society is preparing training courses to update criminal defence solicitors on the impact of these cases and the change to working practice to be expected. These will focus on the four cases, the principles behind each and on developments on police station advice to suspects. Solicitors should refer to the Society’s website for regular updates on events and seminars.

Ends 06 October 2011

Notes to editors

The four references were brought to the UK Supreme Court by judges of the High Court of Criminal Appeal in Edinburgh, having been required to do so by the Lord Advocate in terms of the Scotland Act 1998 and are as follows:

Ambrose v Harris (Procurator Fiscal Oban): This reference is a case which is the subject of an appeal against conviction on the basis of whether the Lord Advocate in leading and relying on evidence obtained in response to police questioning of Mr Ambrose at the roadside in relation to an alleged contravention of Section 5 (1) (b) of the Road Traffic Act 1988 (being in charge of a motor vehicle while over the alcohol limit) without Mr Ambrose having had access to legal advice was incompatible with his right to a fair trial in terms of Article 6 ECHR. The Supreme Court held that this act of the Lord Advocate was not incompatible with Mr Ambrose’s right to a fair trial.

HMA v M: This reference is of a live case against a ruling by a Sheriff on admissibility of evidence. The case has not yet gone to trial. The reference from the Supreme Court was whether the Lord Advocate can rely on evidence obtained from the accused in relation to police questioning at his home address with regard to an alleged assault and whether this would be incompatible with his right to a fair trial under Article 6. The Supreme Court held that this act of the Lord Advocate would not be incompatible with the accused’s right to a fair trial.

HMA v G: This reference is with regard to a case where G was charged with possession of controlled drugs contrary to the Misuse of Drugs Act 1971 and the possession of prohibited firearms contrary to the Firearms Act 1968. The police searched premises under a search warrant while questioning the accused, who had been handcuffed. With regard to statements the accused made, he stated at trial that the leading of this evidence would be incompatible with his right to a fair trial under Article 6. The Supreme Court held that as G was in effect in custody at the time of questioning and did not have access to legal advice the leading of this evidence would be incompatible with his convention rights.

HMA v P: This case has not yet gone to trial. The accused having been charged with assault and rape, the Lord Advocate’s reference is concerned with whether the right to legal advice extends to lines of inquiry which have been obtained from answers which the accused gave to questions, while he was detained in a police station without the benefit of legal advice. The Supreme Court held that any act of the Lord Advocate in relying on this evidence would not be incompatible with the accused’s right to a fair trial, but rather that any issue of admissibility of this evidence is matter for the trial court.

The UK Supreme Court ruled last year, in the case of Cadder v HMA that all suspects should be given access to legal advice before being questioned by the police, while detained. This ruling then promoted the emergency legislation by the Scottish Parliament and as a result the Criminal Procedure (Detention, Legal Assistance and Appeals) Act 2010 was passed in one day on 29 October 2010.

Until this ruling last year, suspects in Scotland could be questioned by police for up to six hours without access to a solicitor.

FOR FURTHER INFORMATION: Journalists can contact Emily Young on 0131 476 8204 or Valerie McEwan on 0131 226 8884. For the out of hours service please call 0131 226 7411.

Email: emilyyoung@lawscot.org.uk or valeriemcewan@lawscot.org.uk

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